Uninjured Class Members in TCPA Cases After the Labcorp Dismissal

On June 5, 2025, the Supreme Court dismissed Laboratory Corp. of America Holdings v. Davis without deciding whether a federal court may certify a damages class with uninjured members. For businesses defending TCPA class actions in California federal courts, that leaves the Ninth Circuit’s Olean rule in place: a class can be certified even if it may include more than a de minimis number of uninjured members, if common questions still predominate. The defense argument now runs through Rule 23’s predominance requirement, one class definition at a time.

What the Supreme Court did in Labcorp

It dismissed the case in one sentence. The per curiam order in No. 24-304 reads: “The writ of certiorari is dismissed as improvidently granted.”

Justice Kavanaugh dissented. He wrote that the Court “does not decide the question presented: Whether a federal court may certify a damages class pursuant to Federal Rule of Civil Procedure 23 when the class includes both injured and uninjured class members.” On the merits, he would have held “that a federal court may not certify a damages class that includes both injured and uninjured members,” reasoning that “Rule 23 requires that common questions predominate in damages class actions.”

A dissent isn’t law. But it’s a signal that at least one Justice is ready to decide the question, and defendants should keep the argument preserved in every case where it fits.

The rule that still governs in the Ninth Circuit

Labcorp came up from the Ninth Circuit, which had relied on its en banc decision in Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, 31 F.4th 651 (9th Cir. 2022). In Olean, the court wrote: “Therefore, we reject the dissent’s argument that Rule 23 does not permit the certification of a class that potentially includes more than a de minimis number of uninjured class members.”

Olean didn’t say injury is irrelevant. In a footnote, the en banc court said that because every class member must have standing to recover individual damages, “Rule 23 also requires a district court to determine whether individualized inquiries into this standing issue would predominate over common questions.” That sentence is the opening a TCPA defendant uses in California federal court.

Where the standing rule comes from

The Supreme Court set the baseline in TransUnion LLC v. Ramirez, 594 U.S. 413 (2021): “Every class member must have Article III standing in order to recover individual damages.” Article III standing is the constitutional requirement that a plaintiff show a concrete injury caused by the defendant.

TransUnion left a timing question open. The Court wrote in a footnote, “We do not here address the distinct question whether every class member must demonstrate standing before a court certifies a class.” Labcorp would have reached a version of that question. It didn’t.

Why this matters more in TCPA cases than most

TCPA class definitions can sweep in people who were never injured by the conduct the plaintiff alleges, and the Eleventh Circuit has shown how that plays out.

In Cordoba v. DIRECTV, LLC, 942 F.3d 1259 (11th Cir. 2019), the district court certified a class of people who received telemarketing calls while the seller allegedly failed to keep an internal do-not-call list. The Eleventh Circuit vacated the certification. It held that class members “who did not ask DIRECTV to stop calling them” lacked standing, because, the court explained, their injuries were “not fairly traceable to DIRECTV’s alleged wrongful conduct.” And it held the district court abused its discretion by not considering whether sorting the injured from the uninjured would require individualized inquiry.

Cordoba isn’t binding in California, and it turned on the internal do-not-call rules. Its logic carries further, in my view. A Do Not Call class can include numbers registered by someone other than the current user, or numbers used for business. A revocation class can include people who never asked to stop. A class of people who supposedly never consented can include customers whose signed forms sit with a vendor. Each of those sorting questions is a predominance argument under Olean’s footnote and a standing argument under TransUnion.

What changes for businesses, and what doesn’t

Nothing in the law changed on June 5. That’s the point. Defendants hoping the Supreme Court would bar certification of classes with uninjured members will have to keep waiting, and in the Ninth Circuit the Olean rule controls.

What a defendant can do is build the record that makes the predominance argument concrete. The argument works best with data: how many class members’ numbers were business lines, how many were on the Registry under someone else’s name, how many had signed consent forms on file. A predominance objection backed by a sample of real records reads very differently from one backed by hypotheticals. I think the most useful early work in a TCPA class action is that sampling, done before the plaintiff’s certification motion is filed.

What to gather once a TCPA class action is filed

The firm’s TCPA litigation defense page covers how class claims typically develop after a complaint is served. Early steps:

1. Preserve the call and text logs, dialer and platform data, and consent records for every number in the proposed class period, under a litigation hold.
2. Export the opt-out and internal do-not-call logs with dates, so you can show who did and didn’t ask to stop.
3. Pull the National Do Not Call Registry scrub records and Registry versions used during the class period.
4. Collect lead-vendor and platform contracts and any consent records vendors hold, along with scripts and recorded messages.
5. Talk to a lawyer before responding to the complaint, contacting putative class members, or discussing settlement.

Questions about uninjured class members in TCPA cases

Did the Supreme Court approve classes with uninjured members?

No. Dismissing a case as improvidently granted decides nothing on the merits. The Labcorp order left the question open, so each circuit’s own rule continues to apply.

Does Olean mean uninjured members never matter in the Ninth Circuit?

No. Olean rejected a fixed cutoff, but its footnote requires courts to decide whether individualized questions about class members’ standing “would predominate over common questions.” A defendant that can show the sorting would take individual proof still has a predominance argument.

Can a TCPA defendant raise this argument at the pleading stage?

Sometimes, through a motion to strike or dismiss class allegations, but the stronger version usually comes at class certification, when the defendant can show records. TransUnion’s holding that every class member must have standing to recover damages also leaves room to raise standing again before any damages are awarded.

When your company faces a TCPA class action

If your company has been sued in a TCPA class action, the class definition and the records that show who was actually affected usually shape the certification fight. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including class claims built on overbroad definitions. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.

Sources

The Supreme Court decisions are Laboratory Corp. of America Holdings v. Davis, No. 24-304 (U.S. June 5, 2025) (dismissed as improvidently granted; Kavanaugh, J., dissenting), and TransUnion LLC v. Ramirez, 594 U.S. 413 (2021).

The circuit decisions are Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, 31 F.4th 651 (9th Cir. 2022) (en banc), and Cordoba v. DIRECTV, LLC, 942 F.3d 1259 (11th Cir. 2019).

This post is general information about the Telephone Consumer Protection Act and related laws as of June 28, 2025. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.